Discrimination and the body

The Able Australia policy

THE WORDS ‘WELCOME’ and ‘opportunity’ are used throughout the Department of Home Affairs’ migration webpages. There is the occasional sun-drenched photo. In each portrait the smiles are wide. Everyone looks satisfied and at ease. These are bursts of liveliness amid reams of dry text. A fact sheet earnestly explains that Australia’s migration program does not discriminate: ‘This means that anyone from any country can apply to migrate, regardless of their ethnic origin, gender or colour, provided they meet the criteria set out in law.’

Given our sordid history of legislative racism, it is not surprising that the department tries to convince potential applicants that we’ve changed. The Migration Act 1958 was a turning point for Australia. The Dictation Test used to enforce the White Australia policy was abolished. Slowly, other restrictions were removed and our procedures were reformed with ‘fairness’ becoming the steady compass point for decision-making. It is a value that migrants are also expected to uphold, with all visa applicants obliged to sign the Australian Values Statement, thereby agreeing to respect the principles of ‘fair play’ and ‘equality of opportunity’.

And yet, Australia’s methods for selecting migrants are not fair, and opportunities are far from equal. We replaced the White Australia policy with the Able Australia policy. The ableism agenda is not hidden. It sits boldly in the legislation. The Migration Act 1958 is exempt from the Disability Discrimination Act 1992. Discrimination against disability is entirely lawful. In fact, it is routine.

Anyone applying for temporary or permanent migration to Australia must complete the form My Health Declarations. If an applicant declares a health condition they are referred to a Medical Officer of the Commonwealth (MOC) for assessment. Most countries have migration health requirements designed to safeguard their communities against infectious diseases such as active tuberculosis. Australian MOCs go much further than that. They also assess whether potential migrants have conditions that may require health care or social support. Their assessment is twofold. First, the MOC determines whether the cost of care breaches the ‘significant-cost’ threshold, which is currently set at around $40,000 for most visa classes. Secondly, they check whether a migrant’s condition will put ‘additional pressure on…health care and community services that are in short supply’, including organ transplants or kidney dialysis.

This sounds fair. After all, it takes careful planning to adequately fund Australia’s social and health care systems. Indeed, the UN Convention on the Rights of People with Disabilities permits decisions relating to migration and movement to be ‘reasonable and proportional’. Legally countries are only required to make ‘reasonable accommodations’ for people with disabilities. According to the Law Institute of Victoria, ‘the proportionality test recognises that human rights are not absolute and may be subject to “reasonable and justifiable limitations”’. Australia’s administration of the health requirement has been widely criticised as being neither reasonable or proportional by human rights organisations and the United Nations.


A 2010 INQUIRY into the Migration Treatment of Disability received more than one hundred submissions. The subsequent Enabling Australia report concluded that our current migration regulations ‘explicitly assume disability, or conditions associated with a disability, to be a cost burden to the wider community’. The Migration Law Program of ANU advised the Joint Standing Committee on Migration that to ‘pick and choose’ migrants based on the theoretically ‘perceived severity of their disability and the perceived health costs flowing from it’ would be clearly discriminatory and in breach of international human rights law. The committee agreed. The report urges the federal government to remove the Migration Act’s exemption from the Disability Discrimination Act. The only submission defending Australia’s administration of migration health assessments came from the department itself.

To determine how much of a ‘burden’ a migrant might be, the MOC does not look at an individual’s circumstances; rather, they assess applications based on the ‘Hypothetical Human Test’. A series of cost tables designed by health economists are used to estimate the expenditure of all the health and community services that an Australian with the same condition would be eligible for over the course of a lifetime. These costs include inpatient and outpatient treatment at hospitals; residential, nursing home and palliative care; any visit to a doctor, specialist or allied health professional; rehabilitation and disability services; supported education; home and community care; and social security benefits such as the disability-support pension. Everything that you could hypothetically access is tallied up, irrespective of whether the services are used. After all the costs are calculated, a further 20 per cent is added to account for inflation. The $40,000 threshold can be easily crossed. This assessment is simply a calculation of service availability rather than actual service utilisation. Unanchoring the test from reality allows prejudices to assume the status of fact: disabled people are a liability.

To reduce bias and ensure consistent decision-making, the cost calculation is supposed to follow a set of official guidance notes. Yet audits in 1992, 2002, 2003 and 2007 found that the notes for guidance were either non-existent or incomplete. Peter Papadopoulos from the Law Institute of Victoria told the 2010 parliamentary inquiry that to his knowledge the notes for guidance had last been updated in 1991. ‘The figures relating to disability support pension are quite different to what the disability support pension criteria relate to today,’ he said. ‘The research in terms of workforce participation which supports the assumptions underneath these papers for people with disabilities is very out of date.’

The Hypothetical Human Test does not include a cost-benefit analysis. It does not consider the social or economic contributions that a person with a disability or their family can make to Australia. It does not matter whether potential migrants have secured employment or can demonstrate the capacity to pay for their own health care. If you or anyone else in your family unit is a significant cost, the ‘one fails, all fails’ rule is enforced; everyone linked to the application is rejected. According to our migration policy, this is playing fair.

Decisions by MOCs are binding and there is no independent review process. Section 474 of the Migration Act 1958 reads like a pedantic list of synonyms: any decision ‘must not be challenged, appealed against, reviewed, quashed or called in question in any court; and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account’. When an MOC says no, there is no room for recourse.

Even enlightened and motivated doctors are hamstrung by the system. The administration of the health requirement has been intentionally designed to remove the MOCs’ clinical judgement. In his evidence to the 2010 parliamentary inquiry, Peter Papadopoulos explained how the grammatical structure of the legislation erases the individual from the process. ‘One of the main reasons decision-makers, including the Medical Officer of the Commonwealth, cannot take into account the visa applicant’s circumstances is the indefinite article in “a person” as it appears in the health criteria. It does not say “the person” or “the visa applicant” and their disease and condition; it says “a person with the visa applicant’s condition”. Essentially that divorces any consideration of the individual circumstances of the visa applicant and their family or what they might bring to Australia.’


IN 2012, IN a belated response to the Enabling Australia report, the immigration department announced that it would investigate introducing ‘a net benefit approach’ to disability. I see no evidence that this has happened. Despite continual criticism, the immigration department has tenaciously resisted calls to remove the assessment criteria that costs are assessed ‘regardless of whether the health care of community services will actually be used in connection with the applicant’. The department appears to assume that if a service is available a disabled person will access it. But as the Australian Bureau of Statistics politely noted following the 2015 Survey of Disability, Ageing and Carers, ‘although some care is provided by formal providers, it is often undertaken informally by friends and family of the recipient’. In monetary terms, informal care was worth more than $60 billion in 2015, which is equivalent to 60 per cent of the value of the health and social-work industry. To put it bluntly, families provide for the disabled, not the government.

Instead of recognising that the family unit is the most effective support to promote and protect the livelihood of a disabled person, our migration policy has torn families apart. Australian Lawyers for Human Rights says that the policy has resulted in children with a disability being left behind while other members of the family migrate. This is especially so in refugee cases. This contravenes our international obligations to protect the unity of the family.

One case study in the Enabling Australia report describes a refugee family who fled from Iraq to Syria:

They had a daughter with a mild intellectual disability who was about fourteen or fifteen years old. The family applied to come to Australia as refugees but were rejected as their daughter had not met the health requirement. It was decided to arrange a marriage for her so that she would no longer be included in the family unit. The family’s second application was accepted and they came to Australia as refugees. The daughter stayed in Syria with her husband. Unfortunately, less than a year after the rest of the family left, the marriage broke down. The daughter was still very young and now had a baby son without anyone to look after them.

Her father ‘was forced to borrow from small institutions at very high interest rates’ to visit his daughter in Syria. After all their attempts to bring their daughter to Australia failed, the father started drinking. Stress and frustration caused the family to fall apart.

The committee ‘heard many stories of families in extreme stress’. The Multicultural Disability Advocacy Association told the committee: ‘We have been involved in cases where we had to wait for eight to ten years.’ The Enabling Australia report called for the assessment of the health requirement to be more transparent and for information on the cost assessments be provided to prospective visa applicants. Despite the immigration department acknowledging that they could do better, little has changed. The notes for guidance are only available to legal practitioners and migration agents through the Home Affairs’ web portal. A subscription costs $800. The department’s free fact sheet about the health requirement does not explicitly mention disability. After navigating a series of hyperlinks, you might find your way to another fact sheet with the opaque name ‘Significant costs and services in short supply’. This fact sheet states: ‘No diseases or health conditions automatically result in a failure to meet the health requirement on significant cost grounds. This is because the likely costs will depend on the form and severity of the condition. However, the five most common diseases that permanent-visa applicants who have failed the health requirement have been identified with are: intellectual impairment, HIV infection, functional impairment, renal disease or failure, cancer.’ While this is more information than was previously available, describing a disability as a ‘disease’ is likely to cause confusion.

As a deaf woman, I do not consider myself to have a disease. Nor has any medical professional ever used such language to describe my deafness. If I had just read the fact sheets on the Home Affairs website I would confidently apply for a visa. However, I would fail the health requirement. A submission in the 2010 inquiry relates the story of a couple ‘who had come to Australia under the skilled migration program, were employed in well-paid professions and in the process of applying for permanent residency. All indications were that their application would be successful.’ While living in Australia they gave birth to a girl who is profoundly deaf. ‘The cost of a cochlear implant was cited as the reason for the determination of “significant cost” and failure to meet the health assessment, despite the parents’ willingness to pay for this.’ It is by happenstance that my parents had become permanent citizens before I was born, otherwise my entire family would have had to leave Australia. Even though I have not gone through the bureaucratic trauma of the Hypothetical Human Test, I feel discredited. It is deeply unsettling to know that your government considers you as nothing more than a burden.


‘THERE IS SOMETHING ironic in prejudice against the disabled and their families, because their plight might befall anyone,’ writes Andrew Solomon in Far From The Tree (Scribner, 2012). Solomon explores how the language of the medical model has changed but its intention has been retained: ‘Defective is an adjective that has long been deemed too freighted for liberal discourse, but the medical terms that have supplanted it – illness, syndrome, condition – can be almost equally pejorative in their discreet way.’ Words that are used liberally throughout the health requirement. They are not just hollow words of convenience, they are brutally effective at barring citizenship.

Our migration policy should send shockwaves beyond the 36 per cent of Australian households that currently contain somebody with a disability. The department continues to justify discrimination on the basis that it is acting in the best interests of society. This legislation does not exist in isolation. Policies are conceived to reflect societal values; when enacted, they go on to reinforce these values. Until we reform the Migration Act 1958, the perception that disabled people are a burden will never become an outdated notion.

Currently, 45 per cent of Australians with a disability are living either near or below the poverty line. To put that into perspective, the OECD average is 22 per cent. While these figures are the result of a complex set of circumstances, the level of disadvantage among disabled Australians is not accidental. It is a symptom of how we conceptualise the body in our social policy. If we consider impairments to be the fate of only a select few, rather than par for the course, disabled people will continue to be considered a liability.

We celebrate change in children, cringe at the riotous passage of puberty, and acknowledge that there is a descent to death. Even without illness or injury, the body runs itself to ruin. Scientists haven’t quite figured out why the body ages but it happens to all of us. Our senses soften, then are blunted beyond use. If you are lucky to live long enough then you will acquire a disability, and probably even more than one. Yet we reward robust figures. The word ‘normal’ no longer represents the yardstick of the average experience – it has become our governing rulebook. Anyone who deviates from the norm is marginalised.

‘Disability has nothing to do with the body, it is a consequence of social oppression,’ writes Michael Oliver in Understanding Disability: From Theory to Practice (Palgrave Macmillan, 1996). How we perceive someone’s worth in Australia has been consistently based on contribution. Our definition of productivity is stitched into our social policies. It lays the foundation of our folklore as a country that has been built up from hard labour. However, by only measuring contribution in dollars and cents, none of us has any inherent value. This should be worrisome for all. Disability does not discriminate; it happens in due course. It is foolhardy to prejudice against the inevitable.

We’re told that Australia’s migration policy is the success story of diversity, yet we continue to administer a system that safeguards the status quo. That is not playing fair.

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